Citation Nr: 18145978 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-40 599A DATE: October 30, 2018 ORDER Entitlement to service connection for sleep apnea, secondary to the Veteran’s service-connected hiatal hernia and esophageal reflux and gastral ulcers is granted. FINDING OF FACT The competent medical evidence is at least in equipoise as to whether the Veteran’s sleep apnea was caused by or aggravated by his service-connected hiatal hernia and esophageal reflux and gastral ulcers. CONCLUSION OF LAW The criteria for sleep apnea, secondary to hiatal hernia and esophageal reflux and gastral ulcers have been satisfied. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1985 to July 2007. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction over the case now resides with the Ft. Harrison, Montana RO. As an initial matter, the Board notes that the RO originally denied the Veteran’s claim in March 2015. The Veteran subsequently submitted a notice of disagreement (NOD) in August 2015, along with additional evidence. The RO issued another rating decision in November 2015, indicating that new and material evidence had been received, reopening the claim, but continuing the denial of service connection for sleep apnea. The Veteran’s second NOD, submitted in January 2016, was timely because it was still within a year of the original rating decision. Therefore, new and material evidence is not at issue, and will therefore not be addressed, because the March 2015 rating decision did not become final. 38 U.S.C. § 7105(b)(1) (2012). Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. 5103, 5103A (2012); 38 C.F.R. 3.159 (2018). In light of the Board’s favorable decision, no discussion of VA’s duties to notify and assist is necessary for this claim. Service connection for sleep apnea secondary to hiatal hernia with esophageal reflux and gastric ulcers Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis. In this instance, the evidence must demonstrate an etiological relationship between a service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. 38 C.F.R. § 3.310(a); Wallin v. West, 11 Vet. App. 509 (1998). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s service treatment records (STRs) note that the Veteran experienced burning and reflux at night when lying down, and occasionally, his reflux woke him up during the night. STRs also report several complaints of fatigue during active service, but indicate that there were no changes in the Veteran’s sleep habits. The Veteran’s STRs do not indicate any treatment or diagnosis related to sleep apnea. Post-service treatment records are silent for any complaints, treatment or diagnosis of sleep apnea until the Veteran underwent a sleep study in September 2014. At that time, he received a diagnosis of obstructive sleep apnea (OSA). In a July 2015 written statement, the Veteran’s treating private physician opined that the Veteran’s obstructive sleep apnea was secondary to his service-connected disabilities. The physician cited medical literature demonstrating a relationship between OSA and indigestion or gastroesophageal reflux disease (GERD), noting that chronic reflux causes upper airway inflammation and narrowing due to repetitive acid damage to tissues that are not meant to be exposed to low pH levels. In August 2015, the Veteran’s wife provided a statement, indicating that the Veteran had difficulty getting a good night’s rest because he often woke up choking on acid; she also reported that she routinely woke him when she heard him gasping for air because his airway was restricted. The Veteran was afforded a VA examination in July 2016. After a review of the Veteran’s medical and lay evidence, the examiner opined that the Veteran’s sleep apnea was not proximately due to, caused by, or aggravated beyond a normal progression by the service-connected hiatal hernia with esophageal reflux and gastric ulcers because there was no medical plausibility or possibility of cause and no objective clinical evidence to support aggravation. The examiner noted several risk factors that could cause aggravation in OSA, explaining that hiatal hernias and esophageal reflux and gastric ulcers do not aggravate OSA. The examiner considered the statement by the Veteran’s physician, reviewed the medical literature provided by the physician, and determined there was insufficient evidence of a causal relationship between GERD and OSA because the association between the two disabilities was still being debated. The Veteran’s treating provider, a doctor of osteopathic medicine, submitted two separate opinions dated in August 2016. In the first opinion, the provider opined that based on the known pathophysiology of GERD and OSA, it was likely that his OSA was aggravated by his difficult to control GERD. The second opinion indicates that based on the pathophysiology of GERD and OSA, it was at least as likely as not that the Veteran’s OSA had its onset during his military service, and the Veteran’s OSA continued to be aggravated by his difficulty to control his GERD. The evidence does not show, nor does the Veteran claim, that his sleep apnea was incurred during his military service. Rather, the Veteran contends that his sleep apnea is secondary to his hiatal hernia with esophageal reflux and gastric ulcers. As such, the Board finds that the August 2016 opinions by the Veteran’s provider are not probative because they address aggravation of the disability, indicating that the Veteran’s sleep apnea had its onset in service. As previously indicated, the Veteran’s STRs do not indicate the Veteran had sleep apnea in service. Moreover, his post-service medical treatment records do not show complaints of continuous symptoms or treatment related to sleep apnea or a diagnosis until years after military service. Thus, given the conflicting medical opinions from the VA examiner and the Veteran’s physician, both of which are supported by rationale, the Board finds that the competent evidence is at least in equipoise as to whether the Veteran’s sleep apnea is related to his hiatal hernia with esophageal reflux and gastric ulcers. While the record does not necessarily support the notion that the Veteran’s hiatal hernia and esophageal reflux and gastral ulcers caused his sleep apnea, the evidence of record reveals that service connection for sleep apnea is warranted. In reviewing the foregoing, the Board has been cognizant of the “benefit of the doubt” rule, and has resolved doubt in the Veteran’s favor in this case. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel